No Recourse to Public Funds and Article 3: Proving Systems Duty Breaches
4 December 2024
Background
In SAG & Ors v Secretary of State for the Home Department [2024] EWHC 2984 (Admin), the High Court considered challenges to the Secretary of State’s determination of applications to remove no recourse to public funds (“NRPF”) conditions placed on the Claimants’ leave to remain. Each Claimant’s position was that they were at imminent risk of destitution. Several grounds of challenge were advanced:
1. The approach to the NRPF conditions was unlawful under common law
2. The approach to the NRPF conditions was a breach of s.55 of the Borders, Citizenship and Immigration Act 2009.
3. The approach to the NRPF conditions was incompatible with the Human Rights Act 1998 read with Article 3 of the European Convention of Human Rights.
This article considers the third ground of challenge under the Human Rights Act 1998.
Legal Framework
The modern orthodoxy on positive obligations under Articles 2 and 3 was set out in R (MG) v Secretary of State for the Home Department [2022] EWHC 1847 where Johnson J outlined three broad categories of duties: systems, operational, and procedural/investigative. This approach has since been adopted by the Court of Appeal in AB v Worcestershire County Council [2023] EWCA Civ 529 at [14] and ASY v Secretary of State for the Home Department [2024] EWCA Civ 373 at [84].
In SAG, Johnson J comprehensively detailed the nature of the systems duty under Article 3: “the systems duty requires that the state has in place as system to safeguard against inhuman and degrading treatment: MC v Bulgaria (2005) 40 EHRR 20 at [149]”. This duty is further divided into a “high level” and “low level” duty. The “high level” duty requires “effective criminal law provisions to deter offences against the person, a police force to investigate such offences, and a court and a judicial system to enforce those criminal law provisions”. The “low level” duty compels the State to “adopt administrative measures to safeguard against inhuman and degrading treatment” ([50]).
In ASY, the Court of Appeal held that a “low level” systems duty crystallises when the Secretary of State is determining an application to remove a NRPF condition ([51]).
Judgment
The question in SAG was whether the Defendant had breached the low level systems duty because of the wait time to determine the Claimants’ applications to remove the NRPF conditions in circumstances where they say they were at imminent risk of destitution.
The evidence showed that there was an average wait time of seventy days for processing applications. This was an increase from the average wait time of eighteen days in the final quarter of 2019. There was no evidence that this was because of an unexpected spike in applications in the interim period ([38], [99]-[100]).
Although the Defendant’s witnesses detailed that requests to expedite applications were considered on a case-by-case basis, there were no specific policies or guidance in place to deal with expedited cases ([35]-[37]).
The Claimants submitted that the Defendant was “failing to determine applications to remove NRPF conditions with sufficient urgency, proportionate to the immediacy of the situation.” This, they argued breached the low level systems duty ([60]).
The Defendant submitted that her policy on determining applications recognised that she must remove the NRPF condition if it is necessary to avoid inhuman and degrading treatment. Therefore, there was no breach of the low level systems duty. The Defendant also submitted that “a flawed decision [in an individual case] does not demonstrate that the underlying system is deficient” [61].
Johnson J considered that, to comply with its obligations under Article 3, the State must ensure that there are ([96]):
suitable systems of work in place, sufficient resources, to reduce the risk of inhuman and degrading treatment to a reasonable minimum, without imposing an impossible or disproportionate burden on the Secretary of State, and having regard to the operational choices made by her in terms of priorities and resources.
In the context of the instant case: “the systems duty includes a requirement to deal with requests to lift a NRPF condition timeously, to minimise the risk of inhuman and degrading treatment” ([98]).
However, Johnson J accepted that ([101]):
flawed (or delayed) decisions in individual cases do not show a systemic failure. It is the system that is important… and a failure by an individual caseworker to act in accordance with the system does not show that the system is at fault. I would not find against the Secretary of State on this ground of challenge merely because a decision in one or other of the cases that are before the court took too long.
However, considering that the average wait time was seventy days, and that there was no practical and effective system in place to triage and expedite urgent cases, Johnson J held that there was a breach of the low level systems duty ([102]-[103]) and issued a declaration to that effect.
Comment
SAG provides authoritative guidance on evidencing breaches of the “low level” systems duty. It is inappropriate to equate individual flawed decisions, such as a particularly lengthy wait time in the context of one Claimant, with a systems failure. Instead, an evaluation of the system overall ought to be undertaken. As Johnson J explained: “it is entirely fair to evaluate the system by reference to [an] average figure, together with such evidence as the Secretary of State has chosen to make available as to mechanisms for prioritisation and expedition” ([101]).
Arguments about individual failings should instead be framed as breaches of the operational duty to take reasonable steps to protect a person from a known real and immediate risk of inhuman and degrading treatment (see e.g. AB at [57]).
This approach to the “low level” systems duty is applicable more widely. For example, in coronial law, it is insufficient to rely on individual failings to evidence a systems duty breach (see e.g. Boyce v HM Senior Coroner for Teeside and Hartlepool [2022] EWHC 107 (Admin) at [41]). It is necessary to provide evidence that the system (or lack of system) itself fails to fulfil the “low level” systems duty. This might be done, as in SAG, by evidencing a problematic average wait time without practical and efficient processes to expedite specific cases.
Matthew Leitch is a pupil barrister at 1 Crown Office Row
